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N!NJA writes "In an amicus curiae brief filed on Aug. 24, Dell asked the judge overseeing the Eastern District Court of Texas to reconsider its order blocking sales of Word, part of the original ruling in favor of Canadian software developer i4i. In the worst case, the brief argued, the injunction should be delayed by 120 days. 'The District Court's injunction of Microsoft Word will have an impact far beyond Microsoft,' Dell and HP wrote. 'Microsoft Word is ubiquitous among word processing software and is included on [redacted] computers sold by Dell.' 'If Microsoft is required to ship a revised version of Word in Dell's computers, a change would need to be made to Dell's images,' Dell wrote. 'Making such a change would require extensive time- and resource- consuming testing.' An addendum to the brief notes that it was authored in Microsoft Word, part of Office 2003."

Except that's not what the injunction says. The quotes I can find [mckoolsmith.com] say:

Today's permanent injunction prohibits Microsoft from selling or importing to the United States any Microsoft Word products that have the capability of opening.XML,.DOCX or DOCM files (XML files) containing custom XML.

Given that Amazon.com "sells" some ebooks for $0, I doubt that shipping Word without charging for the license would pass the "selling or importing" ban.

The injunction itself needs to be modified, and given the case Dell and HP make here, it seems like the original injunction was poorly thought out in terms of unintended consequences.

Anyway, the injunction prohibits Microsoft from selling or importing. There's no reason that would enjoin Dell from selling their stock.

It's doubtful that Dell has a pre-bought stock of CDs to sell for the preloaded software that is the subject of of their brief. They probably pay MS quarterly or monthly on the number of copies they make. That would make any copies Dell preloads onto their machines new copies sold by Microsoft.

This is an odd issue for the courts, as Microsoft did legitimately cheat I4I out (read the details), but on the flip side software patents are an unnecessary burden.

This "odd issue" is an excellent situation for just about everyone not involved in the case, though.

Firstly, arguably the biggest player in the software business is now on the wrong side of a software patents lawsuit, which is going to mean probably the most powerful legal team in the business is going to be looking for all sorts of arguments to get such patents overturned.

Secondly, there are going to be some hard questions about what constitutes "copying" in the case of software, which the big players have been carefully avoiding answering in court for a very long time, for fear that the already dubious legal basis for their EULAs and reseller-based sales models will be invalidated. Answering those questions definitively cannot help but clarify a lot of the ambiguity surrounding those issues. Does the act of installing a piece of software for which you have already paid constitute making a copy? Does the mere act of running software already installed constitute making a copy? It's going to be very unpleasant for players like Dell and HP if the injunction stands, even for a few weeks, and those things are found to constitute making a copy. But if they're not making a copy for the purposes of this software patent-related case, then logically they can't be affected by copyright either, and EULAs fall apart.

I wouldn't like to predict the outcome here, but I'm guessing some big players in our industry are going to be pretty upset one way or another. And given that consumers (and smaller players in the industry, for that matter) are almost always on the wrong side of status quo, hopefully that means we're all going to be pretty happy one way or another.

The fucking patent is about embedding meta-data in XML, something has been done since the 1960s. The patent is a crock of shit. If the patent holders thought they had something, why did they feel compelled to take it to the most patent troll friendly court in the United States?

As has been constantly pointed out, if this is a legitimate patent, then patenting CSS is legitimate. XML is an open standard with a built-in capacity for storing metadata. If every conceivable kind of metadata is now patentable,

I went and read the patent. It's actually about separating formatting from content. This is similar to CSS, but in this case, there would be no tags at all in the 'content' portion of the document at all. Instead, a 'metacode map' would be a code, like 'bold', and the start/stop address of the text affected. SFAIK, this is different than what other document formats do. I certainly haven't seen it before.

However, I totally agree that this sort of patent is bogus, and scary. We should not be able to pat

I4I said they would have sued sooner but were having financial problems.

I checked out the i4i web site. My impression is that i4i had financial problems because they were a dinky little company with almost no significant products. I suspect they had no more than one software developer, and were probably lucky to stay in business all this time. I doubt MS even bothered to ever meet with them. Their business, so far as I can tell, doesn't even significantly benefit from the patented idea, and in no way co

[rant]A bit more on the software patent crud we have to deal with today:

- Microsoft and others stifle innovation and competition through an immense patent portfolio and an angry mob of lawyers. It's no longer easy to build a good product and make money, because MS will come and sue you, while stealing your idea and driving you out of business with monopolistic power.- As a result, the one of the best ways to make money as an innovator is to file several stupid patents, and wait for Microsoft to violate one

I4I said they would have sued sooner but were having financial problems.

I checked out the i4i web site. My impression is that i4i had financial problems because they were a dinky little company with almost no significant products. I suspect they had no more than one software developer, and were probably lucky to stay in business all this time. I doubt MS even bothered to ever meet with them.

Well, this [theglobeandmail.com] paints a totally different kind of picture. Few quotes:

"Nine years ago, an unusual and powerful alliance approached a tiny Toronto software company with a fateful proposition. Microsoft was helping U.S. intelligence sift through relentless mountains of documents relating to the 9/11 terrorist attacks but had few means to sort them out. This firm, i4i, had the software that could intuit crucial, revelatory patterns that its own software could not.

It wasn't long before Microsoft recognized the value of the firm's technology, and, as it is now famously alleged, pinched it."

"Their circumstances are more humble than they used to be, when i4i took up 21/2 floors of the building and employed roughly 200 people, with offices in Manchester, Paris, Amsterdam, Washington, D.C., and San Diego. âoeWhen Microsoft began offering their technology for free,â Mr. Vulpe says, âoeall of our customers went away.â"

It should be noted that it sure as hell wouldn't be the first time MS did something like this. They did it with Quicktime in the 90's as well.

And if you'd actually read the fucking patent you'd realise that it doesn't cover SGML and explicitly says so. It also doesn't cover using XML in the normal way as a document format, including XML with metadata - as you say, that's like SGML.

What it does cover is splitting the document into two parts - a part containing text, and a second part containing formatting information for the text that references into the first part by location. This is nothing like the normal use of XML/SGML for document formattin

If they have paid Microsoft for the right to Sell x Million copies of Office, then Microsoft has already sold x Million copies to Dell.

That's quite a big "if" there. I doubt that Dell pays Microsoft 60 days ahead of time for software that they are going to copy onto a new harddrive when and if they sell it. They might have paid MS for the master, but the copy doesn't exist to be licensed until they make it - I would expect that moment of copying would be the moment the legal infringement takes place.

I doubt that Dell pays Microsoft 60 days ahead of time for software that they are going to copy onto a new harddrive

There is another reason to not pay ahead of time - the financial one. With Dell's volume, paying months in advance will result in a tidy sum of money that is on a permanent, no-interest loan to Microsoft. The current business practice is completely opposite - under the "net 30" [wikipedia.org] rule Dell would pay Microsoft not later than 30 days *after* Dell created a copy.

When it comes to Dell and HP, the majority of Word licences are part of works and not part of office. In that case works is just a wedge to get office in the door and is a marketing exercise on M$'s part and to keep OpenOffice.org out as such the price is likely to be very low, free and could even generate a discount on windows. So M$ makes a gain from word continuing to be installed, as such Dell's and HP's requests are likely not so much their own but being done a upon M$'s promptings.

All of this is absurd. There is no "undue" harm or burden on Dell or HP here. I speak as someone that worked in dell's testing lab for more than a year creating these images. It would be TRIVIAL for dell to make new images and put them into production. None of the hardware is changing, only the software and only the office suite at that. There is no known case where removing Office (or just word from the office install) would cause any issues. Other than not being able to open a number of document types, but then, that's the whole point. It might take them a week or two, but they have 60 days or more, so it's not like it's going to hurt them. Further, they make new images regularly for new systems, it's not like they don't do this shit every day.

At the end of the day, this is a further play by MS's lackeys to fight this legitimate injunction on behave of MS. Nothing more. Nothing less.

I saw this article a couple times, and finally clicked it to see what's being said. Good post you've made there.

I'd like to add though, that Dell jumped on the bandwagon years ago when MS demanded exclusivity agreements in exchange for distribution rights. Even if Dell were to suffer a loss if ordered to distribute no more Word products, I couldn't feel sorry for them. Dell assisted, even if indirectly, in creating the Microsoft monopoly. A little hardship might make them reconsider pushing Linux and No-OS machines a little harder. It would be good to see such offerings on their FRONT page. It would be even better to see the end of "Dell recommends Windows Blah" on every page.

All of this is absurd. There is no "undue" harm or burden on Dell or HP here. I speak as someone that worked in dell's testing lab for more than a year creating these images. It would be TRIVIAL for dell to make new images and put them into production.

Where's your letter to the court pointing that out, with references?

Last I checked, intentionally lying to the court could get you into serious trouble. If what you say is true, you have a duty as a citizen to point this blatant lie out to the judge, with details, and let him rip Dell a new one.

What I don't get is, last time I was on Dell's site, it let you configure a computer system. The exact same system offering Microsoft Office could be configured with WordPerfect and I think they had an option of no office suite at all. That means they have images with WordPerfect and images with no office suite. So, would it kill them to just use one of the images they already have instead of complaining that they have to make a new one?

At least previously, they only offered that on some of their machines. And their complaint isn't about using one of the other images, it's that they would need to update their existing Word one with the new version. At a minimum you're talking creating one image per motherboard design, so several dozen, plus you probably *should* be testing it with the various configurations of each.

You are missing the hidden point here. There is no technical reason why HP or Dell would do this. Only a political one. Microsoft "asked" them to do this, obviously. By "asking", I mean that they might have hinted that there might be some technical difficulties in calculating volume discounts, if companies do not spend just a little of their lawyer payrolled time.

While true, it's also explicitly one of the factors that go into determining whether injunctions should be issued--- they're discretionary relief that is supposed to take into account any hardship the injunction might cause to nonparties.

While I can understand your point, the thought that crossed my mind is that Dell is arguing that companies should be allowed to willfully neglect patents just so long they're important enough? That doesn't sound very fair to me.

What I don't get is why doesn't MSFT buy them out? Seems like it would be cheaper in the long run and less of a hassle just to buy the whole damned company than risk royally pissing off the OEMs (who might even get ticked off enough to ship OO.o instead) over such a small company compared to MSFT. Besides isn't Ballmer an Co sitting on a big old pile o' cash ATM? Seems it would be better spent on just buying the tech than wasting who knows what on lawyers and appeals, meanwhile if the injunction stands they

Third parties will be harmed while the patent holder isn't likely to see anyone buying their product instead of Word.

Which is not the point.

As much as I dislike software patents, if there's ever been a clear case regarding them, this is it. MS partnered with i4i, took their technology and included it in their software without an agreement.

The penalty for being caught with the hand in the cookie jar can not simply be that you now have to pay for the cookies. If it were, then trying theft first would be the rational choice. A penalty like "no more cookies for you, not even if you pay, plus penalties and paying for those you took so far" sounds about right.

MS is a company with tons of spare cash, literally. Hitting them with a monetary penalty will make them laugh, and continue on their merry ways. Telling them to actually get their damn dirty fingers out of the cookie jar is what hurts them.Yes, and their partners who sold the cookies on to others. Poor fellows. I almost feel sorry for you. It's not as if anyone would ever think that MS might be a company that's anything but spotlessly clean and nothing like this could ever happen, and contingency plans would be entirely unnecessary.

New Rule: If you put all your eggs in one basket, you don't have a right to cry if it falls.

That sounds reasonable. It's not really fair for OEMs to suffer for Microsoft's misdeeds, but likewise it would not be acceptable for Microsoft to dodge reasonable injunctions just because they would inconvenience OEMs.

"Too big to be illegal" is a ludicrous concept. It makes "too big to fail" look positively sensible.

Are you joking? Microsoft is a convicted monopolist. Their sentence may have been light, but they were convicted of a criminal offense.

NO.

Microsoft was found to be a monopoly, and to have committed the CIVIL wrong of using said monopoly to improperly affect other markets.

If they had been found guilty of being a criminal organization -- you know, one that commits crimes by way of its business -- there wouldn't be a Microsoft right now, because their corporate charter would have been revoked, all their stock would have become worthless, and there'd be a big chunk out of the national debt.

Let's look at the same argument used by Corporate America - specifically, RIAA. The statement that file sharers are "criminals" is common. It is a determined effort to alienate filesharers from people who genuinely respect the law. That inaccurate statement is incorporated into any and every PR release made by a majority of IP holders. "Criminal" are costing Corporate America billions of dollars annualy.

I've argued and pointed out many times that file sharers may or may not be guilty of infringing on CIVIL LAW, but that does not make them "criminals".

Honesty demands that we not use the same dirty trick against Corporate America. Microsoft is not a "convicted criminal". They may be a bunch of rat bastards, but being a rat bastard is not in and of itself a criminal offense.

If someone steals a car, and I bought that car from the person, the original owner is still the owner of the car. If it's discovered that I have the car, I can't say "taking this car from me is really going to cramp my style." If the ruling is MS doesn't have the right to sell office, that's the ruling. Whether you agree with it or not, it must be enforced at all levels. Just because the ruling inconveniences others beyond MS has no bearing. They bought an "illegal" product.

Can you say "extra sanctions"? The amount of money MS would lose if this injunction stands throughout their appeal is insignificant compared to the power of the f.. Sorry, compared to the risk they would be taking if such an arrangement became known.

If you're coping images as fast as you can, if you need to shut everything down to make new images you will have a massive backlog. And you don't have corporate bureaucracy double- and triple-checking that you didn't slip malware onto the image while nobody's looking.

This is such a bad example. On both Debian and Ubuntu if you apt-get remove mono you'll be presented with a list of affected packages. This is the whole idea behind dependencies. You think Debian or Canonical have tested every possible combination of installed packages? Well, they haven't and they don't need to. I'm willing to bet that at least one of my systems' installed packages lists are unique in the world and it didn't need tested by Debian first.

Of course it is BS, it is more or less doable, comparing to penalties which they will get themselves into if they won't comply. It's interesting that they just don't use 'lost sales' argument. It could have some consequences for Dell too?

Anyway, this case is ugly as it can get about software patents. It is not traditional troll case, but still I don't like it - I don't like software patents at all.

There were a few users who got OptiPlexes before I started working there, and were quite adamant about keeping the Dell base image. I will say this with confidence: if Dell does any testing of its base images, I sure didn't see it. I'm not really sure if their image qualifies as an operating system--it was more of a Dell advertisement.

I'll post as an AC since I no longer work for Dell.
I think your customer rep needs a kick up his ass. I used to work in the Enterprise division of Dell earlier and (helped) developed Altiris plug-ins to deploy customer images. If your rep is selling you the consumer imaging tools and/or has not told you about how to deploy your config specific images from Dell's factory or deploy it using Altiris/3rd party plugins on a base image, he must be slacking off.
That said, in many cases, what you are doing is the right thing. Wiping clean the base image and loading your own is often a simple way of keeping images/patch levels to corp standards and to comply with license agreements.
Dell does try to make this process simple and they can provide you more tools to do your job better.

If they hadn't preloaded all of their images with free trials and bloatware then this wouldn't be a problem in the first place. When I have to setup one of their machines, the first thing I always do is reformat and build a new image anyway without all of the extra crap that shouldn't be there.

Anyone who has visited the Dell website with any recency knows that Word is not bundled as a default "freebie-included-in-price" option. The default option is "No Productivity Software Added." Adding MS Works (which includes MS Word 2003) costs $79.
So what's the "imaging" problem? Are we supposed to pretend this particular retailer, whose model is different from others because of user-customization options, is incapable of providing machines without a software option (particularly given that this is their default configuration?)....
The place this impacts Dell the most I'd imagine is in relation to Enterprise level customers, and all those Colleges and Universities they are partners with --- who sell pre-configured machines with Word installed to their students.
Of course, everyone has moved into their dorms in the next "120 days" and it's not like Enterprise customers in Canada won't deal with this from every PC retailer.
I smell a rat.

I am a small business owner that provides integrated computers systems and support to other small businesses. As part of the package I provide M!cr0s0ft Offices, supplied to me, with authenticity seals by M!cr0s0ft of China.

Recently I was informed that Microsoft, USA, wants to put a restraining order on this perfectly legal software claiming that it is byte for byte copy of their suite of office products. While I disagree with this, for instance MS Office clearly uses ribbons, while M!cr0s0ft Offices uses menus, I realize that this is a decision for the courts.

All I ask is that the restraining order be revoked. The only way I can provide value to my customers is that M!cr0s0ft provides a hard disk which I use to image all my other computers. I pay a license fee for each image, but otherwise the labor is very cheap. If I had to install each piece of software, or even create a new image, this would destroy my competitive advantage I have over the other bigger firms.

Please, do not place an injunction against M!cr0s0ft. If the courts do find the software infringes on Microsoft product, then Microsoft can sueM!cr0s0ft and recover damages, and I will have time to find another supplier. If M!cr0s0ft is found not to be infringing, then you will be destroying a legitimate small business for no reason. I know the knee jerk reaction in this case is to assume culpability, but I assure you there are many differences between the two products, and M!cr0s0ft is not infringing. Trust me. I am the entrepreneurial backbone of this country.

With as much crap as Dell includes on it's default computers, certainly something is always in need of an update. They must have new images several times a year to keep the versions all current. One more image doesn't seem like such a big deal.

People keep saying this on Slashdot, but have you ever bought a computer from HP? Compared to HP, and other computer retailers (most of them at least), Dell ships hardly any crapplications at all. In addition, Dell actually ships you a clean and working OS disk (with the crapplications on a completely different disk), HP puts both on the same disk making it impossible to reinstall your HP OS without also reinstalling the crapplications.

In short, Dell's one of the absolute best when it comes to shipping clean OSes.

Because if OpenOffice was found to be infringing on this patent and Dell packaged OpenOffice instead your post would read "Maybe this is a wake up call for people relying on *.odt", right? And that your post would also have a question mark next time.

1 although if you had been paying attention you would have seen that i4i stated that OpenOffice does not infringe on the patent.2 the odt format is a standard, not a product, not exclusively owned by OpenOffice. unlike Microsoft products, you could get other products to read/write that format

So now we see the far-reaching disaster that occurs when we enforce these stupid software patents - all the logistical nightmares, the impractical enforceability, the unwitting collateral damage, et cetera. Our greatest hope is that everything can blow up in everyone's face as big as possible with no real advantage to anyone in the end (that's right: dump as much spam in the fan as you can) and then we'll see how pointless it is to enforce software patents.

Nope, just see what happend with RIM and the claim against them for using a mobile device that gets mail pushed to it from a server. A small patent holder was completly screwed over, and the main reason there was no injunction - lots of US government offices use Blackberrys and would have been "crippled" without them.The whole thing with the patent laws as they are enforced today is they are really only a way for the rich to keep somone else form joining them at the trough.

So now we see the far-reaching disaster that occurs when we enforce these stupid software patents

It could be worse. When Kodak lost a patent case against Polaroid in 1985, they were given 30 days to stop making film for instant cameras, exit the business, and buy back all retailer inventory. Which they did. Then they lost a class action suit and had to buy back the cameras already in consumer hands.

So a hardware manufacturer made a deal with a software manufacturer. That software has a problem and needs to be altered. Hardware manufacturer then says "yeah but that will cost us time, and time is money". Judge will hopefully say "Review your deal and next time make a better one to account for these kinds of things. For now, stop complaining and start re-imaging disks".

I don't know what the outcome will be, but I doubt that the judge will be reading from the anti-MS playbook.

what anti-MS playbook? This could be any software manufacturer. The point is that the previous ruling has nothing to do with hardware manufacturers. It's like saying to an engine manufacturer they can't use one type of bolt anymore. Then car manufacturers will complain saying they already implemented the entire engine and can't replace the offending bolt without taking out the entire engine and rebuild it.

Remember, this is just a request to temporarily stop enforcement of the trial courts order until the appeal process is finished. Any party has the right to file such a brief and if they can show that the injunction harms them more than the delay harms the party who won the original case it's perfectly reasonable.

The final word on this case won't be decided based on the harm it may cause to Dell or HP.

When Microsoft decides it's time to get more money and releases a new version of Office, as they have done several times in the past, does Dell charge them for having to change their image again? What about major OS service packs? They re-image for those too. It's part of their business. How is this any different from what would happen if MS released Office 2010?

Can someone explain to me how a company can ask a judge to not apply the law for purely commercial reasons?Why not let proven big drug dealers go free because they fuel the economy while they're at it?

Are software patents suddenly OK when MS gets stuck? I wouldn't use their 'copy-ware' myself but still aren't/. readers against this abuseof the patent system? There is a bigger story, but the press just haven't seen it yet. I think some of us know where the prior art is anyway for this idea that isn't patentable. Will Apple bring back 'look and feel' suits? Very bad idea, even if its just Microsoft.

'Making such a change would require extensive time- and resource- consuming testing.'

Self-made problem, I'd say. If your procedures can't handle the process of removing a piece of software, or replacing it with a newer version of itself, then your procedures suck. We're not talking about a kernel change here, are we?

Seriously? Car anology? "Dear Sirs, unfortunately, removing the radio is so much work, we'd have to remodel our entire factory."

They do not use rewritable disks. They have disks that are evaporated aluminum on a plastic substrate. They have to remaster a new disk image and start running a separate batch for the non-Window version. This will also make for one more option to manage. They didn't say it was impossible, they just wanted to tell the judge that his decision has consequences that effect a major Texas high tech company.

No, it means "We have a single image that goes out to tens of thousands of customers in hundreds of different hardware configurations, If the software configuration in that image changes, we have to test with the maximum level of paranoia to ensure that we don't get a flood of complaints, and requests for refunds, that each have to be verified independently and will set us back millions of dollars."

I'm sure their imaging system is in order and whipping up a new image will take at worst a few hours. But I ca

How can REMOVING software from an image require testing? How does it make any sense that my computer will become less stable because it is missing LESS word processing software?
Brilliant logic perpetuated by the microsoft apologists.

Removing the software requires them to re-do the image from scratch.Machines these days, even if you don't purchase Office with them, generally come with what's called the OPK - OEM Preinstallation Kit installed. It's a copy of Office, sitting there on the hard drive, just waiting for a serial number to be entered to activate it. Depending on the serial number entered, it will then become that particular flavour of Office.Even if you chose the option that they have when configuring the machine to order to not have Office installed, I'm betting that you still get office on the hard drive, you just don't get the serial number to activate it.

Even if you chose the option that they have when configuring the machine to order to not have Office installed, I'm betting that you still get office on the hard drive, you just don't get the serial number to activate it.

And being a HP reseller, I can confirm that yes, it's still there even if you dont purchase office with it. I assume it would be the same with Dell products.

Yup, removing a library or application from an install (and Office contains both) never broke anything... I'll give you the benefit of the doubt over your English and assume you're not a native speaker, but your post also makes me wonder if you've ever actually used a computer before today.

How is Dell's poor management of their imaging system anybody else's responsibility? 'Extensive testing' is just code for 'we are a bunch of conniving lazy ass middle managers who depend on our outsourced technicians to tell us what to do.'

No it's shorthand for make the change and wait a few weeks while everyone pours in complaints.

I actually worked at a computer manufacturer. Regardless of whether you think computer manufacturers should test their software or whether they are doing a crappy testing their product, it takes a ton of resources to get a master image out. You are testing multiple masters, not just one, based on different SKUs, etc. I admit, some of the testing we did were stupid but when you are consider MM units shipped and if a stupid error goes through you might pretty much bankrupt the company, you want to make sure you get enough testing.

As for OpenOffice, are you willing to ship out 1M+ units without good testing? Assembling your own computer is very different from shipping out 1M units all over the world + liability for computer tech support (regardless on whether you think Dell support sucks, it probably costs them $10~$20 per call; when you figure out a typical profit margin of 8% per unit, couple tech support calls will kill your margins).

What Dell and HP do not have faith that MS will put out a reliable replacement?

Then stop shipping the product! Thats what the judges order says....its says do not sell anymore.

If MS cannot provide what Dell needs they are out of luck for a bit....how about negotiating with MS and telling them they have to support this new version of Word for 120 days or its no sellly from Delly?.